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Madhya Pradesh High Court · body

2021 DIGILAW 577 (MP)

Sachin v. State of M. P.

2021-07-30

SUBODH ABHYANKAR

body2021
ORDER (ORAL) 1. This Miscellaneous Criminal Case has been filed by the petitioner under section 482 of the Cr.P.C. being aggrieved by the order dated 6.1.2021 passed by the learned IIIrd Additional Sessions Judge, Barwah in S.T.No.116/2013 whereby the right of the petitioner/accused to cross examine the Investigating Officer has been closed. 2. Brief facts giving rise to the present petition are that the petitioner is facing the trial for offence under sections 342, 366, 376 of the IPC in the Court of IIIrd Additional Sessions Judge, Barwah, District Khargone wherein the Investigation Officer, P.W./15 D.K. Tiwari was being examined and in the course of his cross examination on 6.1.2021, a question was asked by the counsel appearing of the petitioner/accused which, according to the learned Judge of the trial Court, was a matter of argument only and was not relevant. Hence, on this question the learned Judge of the trial Court directed the counsel appearing for the petitioner not to ask such irrelevant questions, otherwise his right to cross examine the witness can be closed. However, when the subsequent question was asked by the counsel for the petitioner, which according to the learned Judge was also irrelevant, the learned Jude closed the right of the petitioner/accused to cross examine the witness vide impugned order dated 6.1.2021. 3. Counsel for the petitioner has submitted that the questions which were put to the Investigating Officer were relevant and even otherwise the learned Judge of the trial Court ought not to have closed the right of the petitioner which is a valuable right and all the more important in a serious offence like section 376 of IPC. Thus, it is submitted the impugned order be quashed and the learned Judge of the trial Court be directed to allow the petitioner to cross examine the Investigating Officer. 4. On the other hand, counsel for the respondent/State has opposed the prayer and it is submitted that no illegality has been committed by the learned Judge of trial Court in passing the impugned as it is necessary for the Court also to curb such practice of asking irrelevant questions in the cross examination. 5. Heard learned counsel for the parties and perused the record. 5. Heard learned counsel for the parties and perused the record. Before dealing with the merits of the case, it would be germane to refer to the question which led to the controversy and Judge's response to the same vide order dated 6.1.2021, it read as under:- ^^13- Á'u& lfpu ds uke ij xkM+h ugha gS\ uksV& eseksjs.Me esa ;g rF; vk;k gS fd xkM+h nhid ds uke ij gSA tks Á'u iwNk x;k og esVj vkWQ vkX;qZesUV gS] esVj vkWQ Økl ,Dtkfeus'k ugha gSA vr% iwNus dh vuqefr ugha nh tkrh lkFk gh cpko i{k ds fo}ku vf/koDrk dks funsZf'kr fd;k tkrk gS fd og lqlaxr Áfrijh{k.k djs] vlaxr Áfrijh{k.k fd, tkus ij Áfrijh{k.k dk volj lekIr fd, tkus ij fopkj fd;k tk,xkA Á'u& xkM+h lfpu ls rks tIr ugha gqbZ\ uksV& vkns'k if=dk esa of.kZr dkj.k ls Áfrijh{k.k dk volj lekIr fd;k x;kA** Thereafter the following impugned order was passed by the learned Judge on the same day:- ^^6-1-2021 jkT; }kjk ,thihA vkjkih lfpu lg] 'ks"k }kjk Jh ';keflag iaokj vf/koDrk mifLFkrA lk{kh MhŒdsŒ frokjh mifLFkrA lk{kh dks 'kiFk fnykbZ tkdj mldk Áfrijh{k.k ÁkjaHk fd;k x;kA cpko i{k ds fo}ku vf/koDrk us U;k;ky; }kjk fn, x, funsZ'k¨a dk ikyu ugha fd;k vkSj euk djus ds ckotwn vlaxr Á'u fd;k] ftl dkj.k lk{kh MhŒdsŒ frokjh ls cpko i{k dk Áfrijh{k.k dk volj lekIr dj lk{kh dks mUeqDr fd;k x;kA lk{kh fiUVw vkj{kd T;ksfr] vkj{kd jkeflax dks tfj, leal ryc fd;k tkosA Ádj.k vfHk;kstu lk{; gsrq fnukad 25-01-2021 dks is'k gksA iqu'p% fnukad 6-1-2021 jkT; }kjk ,thih mifLFkrA vkjksih lfpu lg] 'ks"k }kjk Jh ,lŒ,lŒ iaokj vf/koäk mifLFkrA vkjksih iwtk ckbZ dk gkftjh ekQh vkosnu fujkd`r djus ls NwV x;k gS] ftl dkj.k mldk fujkdj.k fd;k tk jgk gSA iwtkckbZ dk gkftjh ekQh dk vkosnu is'k] dkj.k mfpr gksus ls ckn fopkj Lohd`r] mifLFkfr tfj, vf/koDrk ekU; dh tkrh gSA Ádj.k iwoZor vfHk;kstu lk{; gsrq fnukad 25-1-2021 dks is'k gksA** 6. A bare perusal of the aforesaid proceeding and the subsequent order passed by the learned Judge of the trial Court leaves no manner of doubt that viewed from any angle, the impugned order cannot be sustained in the eyes of law as it defeats the entire purpose of the right of an accused to cross examine the witness. A bare perusal of the aforesaid proceeding and the subsequent order passed by the learned Judge of the trial Court leaves no manner of doubt that viewed from any angle, the impugned order cannot be sustained in the eyes of law as it defeats the entire purpose of the right of an accused to cross examine the witness. It is apparent that only one question was asked by the counsel for the petitioner prior to the impugned order was passed and regardless of its admissibility or relevance, the learned Judge of the trial Court ought not to have closed the right of the petitioner to cross examined the witness. It is trite that cross-examination is the only tool available to a defence lawyer to test the veracity of a prosecution witness, it is the only way out to an accused to clear his name from the alleged offence hence his right to cross examine a witness cannot be curtailed in such a cavalier manner. 7. Having said so, this Court is also of the considered opinion that cross-examination of a witness is an art which, though, can be performed by any lawyer in a black coat but it is very difficult to master the same as it takes years of hard work and exposure to trials that one can have some expertise in it. It is only through a long and hard exercise of trial and error method that a lawyer learns the art of cross examination but if the judge presiding over the matter is impatient or edgy, it not only culminates into an order like the impugned one, but also hampers the overall learning process or grooming of a lawyer who, before becoming an expert trial Court lawyer, is bound to falter many a times by asking irrelevant or inadmissible questions to a witness in the box. Thus, it is expected from the judges of the trial Court to be patient and tolerant in their approach towards the trial Court lawyers during the examination of witnesses. 8. Thus, it is expected from the judges of the trial Court to be patient and tolerant in their approach towards the trial Court lawyers during the examination of witnesses. 8. In the considered opinion of this Court, if the learned Judge was of the opinion that despite his warnings the counsel appearing for the petitioner has continued to ask irrelevant questions, then other modes were also available to the learned Judge of the trial Court as are prescribed in the Evidence Act, 1872 from sections 146 to 152 and in some exceptional cases, the learned judge may also resort to the measure like imposing cost on the counsel for repeatedly and recklessly asking the irrelevant and inadmissible questions but, instead of taking resort of such procedure, the learned Judge has closed the right of the accused to cross examine the witness, which cannot be countenanced in the eyes of law. 9. In view of the same, the impugned order being contrary to law cannot be sustained and is hereby quashed. The learned Judge of the trial Court is also directed to recall the Investigating Officer, P.W.15 D.K. Tiwari and allow the counsel for the petitioner to cross-examine him. It is made clear that if any irrelevant question is asked by the counsel appearing for the petitioner, the learned Judge would be at liberty to take appropriate steps as are permissible under law. With the aforesaid, the present M.Cr.C. stands allowed.